Com. v. Irving, J. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JEREMIAH OSHEA IRVING : No. 1629 WDA 2019
Appeal from the Order Entered October 9, 2019
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000896-2019
BEFORE: BENDER, P.J.E., OLSON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 3, 2020
The Commonwealth of Pennsylvania appeals from the Order entered in
the Court of Common Pleas of Beaver County on October 9, 2019, granting
Appellee Jeremiah Oshea Irving’s motion for habeas corpus relief for lack of
prima facie evidence with regard to charges of: receiving stolen property;
possession of firearm prohibited; conspiracy to commit receiving stolen
property; possession with intent to deliver a controlled substance; conspiracy
to commit possession with intent to deliver a controlled substance;
possession, and possession of drug paraphernalia.1 These charges stemmed
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* Former Justice specially assigned to the Superior Court.
1 The Commonwealth does not challenge herein the trial court’s decision as to
the receiving stolen property, possession of firearm prohibited and conspiracy
to commit receiving stolen property charges.
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from the execution of a search warrant on February 1, 2019. Following a
careful review, we reverse and remand for further proceedings.2
Our review of the certified record reveals that following an investigation
of three individuals: Donald Williams, Robert Cook, and Appellee, Trooper
Joshua Fachet obtained and executed a search warrant for the area of 4600
4th Avenue, Apartments 3 and 4, in Beaver Falls, Pennsylvania. At the
Preliminary Hearing held on April 30, 2019, Trooper Fachet testified that upon
entering Apartment 4 after executing that warrant on February 1, 2019, the
Pennsylvania State Police Special Emergency Response Team (SERT) located
several individuals therein. N.T. Preliminary Hearing, 4/30/19, at 8. When
he ultimately arrived, Trooper Fachet observed four men, including Appellee,
in the dining room and Williams, who was lying in the doorway between the
dining room and kitchen; SERT already had taken Cook from the scene. Id.
at 9, 12.
A Vice Unit police officer on the scene notified Trooper Fachet that two,
clear, knotted baggies, one of which contained suspected crack cocaine and
the other of which contained two baggies of a white, powdery substance that
was believed to be cocaine, were found in the toilet. Id. at 10. Trooper Fachet
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2 The Commonwealth has perfected its interlocutory appeal from the Order
granting Appellee’s suppression motion in that its notice of appeal contains
the requisite statement certifying that the Order would “substantially handicap
the prosecution” pursuant to Pa.R.A.P. 311(d) and 904(e).
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estimated a total amount of two to three ounces of cocaine was contained in
the baggies. Id.
On the kitchen countertop, Trooper Fachet observed a Pyrex cup and
baking soda along with a stainless steel knife stained with white residue. In
Trooper Fachet’s experience, such items are used to make crack cocaine. Id.
at 11. A scale with a small piece of a white chunky substance on it was found
near Cook and Appellee in the dining room. Id. Trooper Fachet found a stolen
handgun in the living room and recovered $1,700 from Appellee’s person and
$1,800 from Williams. Id. at 12.
In the only bedroom of the home, Trooper Fachet observed a small,
knotted baggie containing suspected crack cocaine and a crack pipe in the top,
right dresser drawer. Id. at 13. Also therein were items bearing Cook’s name
and the address of the apartment. Id.
Prior to the execution of the search warrant, police had conducted
surveillance on the residence. Id. at 23, 27. Trooper Fachet explained that
he “kn[e]w for sure that [Appellee] was observed coming and going
throughout the surveillance.” Id. In fact, police took photographs of Appellee
in front of the apartment building days before February 12, 2019. N.T.,
10/1/19, at 10.
Trooper Fachet filed a criminal complaint on February 1, 2019, charging
Appellee with the following seven counts: Receiving Stolen Property;
Conspiracy to Commit Receiving Stolen Property; Possession of a Firearm;
Possession with Intent to Deliver; Conspiracy to Commit Possession with
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Intent to Deliver; Possession and Possession of Drug Paraphernalia. On June
10, 2019, the Commonwealth filed a criminal information charging Appellee
with the same seven counts. On July 19, 2019, Appellee filed a counselled
Omnibus Pre-Trial Motion for Relief wherein he requested a grant of habeas
corpus due to a lack of sufficient evidence.
On October 1, 2019, the trial court held a Pre-Trial hearing at which
time Trooper Fachet provided additional testimony. Specifically, he explained
that surveillance at 4600, 4th Avenue, Apartment 4 identified Appellee
repeatedly entering and exiting the residence, and photographs of him doing
so were taken throughout January 22-23, 2019. N.T. 10/1/19, at 9-10. Also,
the search of the apartment revealed a court document and a shipping label
bearing Cook’s name and the Apartment 4 address, and while detained, Cook
admitted he resided in the apartment. Id. at 12-13. Trooper Fachet also
commented upon the approximately $1,700 and $1,800 found on Appellee
and Williams respectively. In doing so, he noted that based upon his training
and experience “individuals will allow dealers or drug traffickers to utilize their
apartment for many reasons, for payment or also through controlled
substances, various reasons, so it’s not unusual that the owner of the
residence is not holding a lot of money.” Id. at 38.
In its October 9, 2019, Order the trial court granted, in part, Appellee’s
suppression motion. The Commonwealth filed a timely notice of appeal on
November 1, 2019. Although the trial court did not direct the Commonwealth
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to file a concise statement of the matters complained of on appeal pursuant
to Pa.R.A.P. 1925(b), the trial court filed a Rule 1925(a) Opinion on November
21, 2019. Therein, it indicated that it had determined it set forth the reasons
for the appealed Order in its Opinion and Order dated and entered on October
9, 2019; therefore, no further Opinion would be forthcoming.
In its appellate brief, the Commonwealth presents the following question
for our review:
1. Whether the trial court erred in ruling that the evidence was
insufficient for a prima facie case as to possession with intent
to deliver, conspiracy to commit[] possession with intent to
deliver, possession and possession of drug paraphernalia.
Brief of Appellant at 7 (unnecessary capitalization omitted).
The Commonwealth argues that the trial court erred in determining it
had failed to present prima facie evidence Appellee constructively possessed
any of the contraband found in Apartment 4. The Commonwealth stresses
Appellee may be deemed to have the requisite control over the contraband
even though other individuals were present in the apartment, especially in
light of the fact that he was found in close proximity to the manufacturing
materials. Id. at 20. The Commonwealth further contends the totality of the
evidence, including the large quantity of drugs found in the nearby toilet and
fact that Appellee had approximately $1,700 on his person, reveals that he
knew about and participated in the manufacturing of narcotics in the
apartment. Id. at 20, 22.
At the outset, we recognize:
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In reviewing a trial court’s order granting a defendant’s petition
for writ of habeas corpus, we must generally consider whether the
record supports the trial court’s findings, and whether the
inferences and legal conclusions drawn from those findings are
free from error. A trial court may grant a defendant’s petition for
writ [of] habeas corpus after a preliminary hearing where the
Commonwealth has failed to present a prima facie case against
the defendant.
Commonwealth v. Hilliard, 172 A.3d 5, 10 (Pa.Super. 2017) (quotation
marks and citations omitted). Further:
The evidentiary sufficiency of the Commonwealth’s case, or lack
thereof, is a question of law; as such, our scope of review is
plenary. Commonwealth v. Karetny, [ ] 880 A.2d 505, 528 (
[Pa.] 2005). We have previously described the well-settled
principles governing preliminary hearings, as well as the
Commonwealth’s concomitant burden, as follows:
The purpose of a preliminary hearing is to
determine whether the Commonwealth has made out a
prima facie case for the offenses charged. A prima facie
case consists of evidence, read in the light most
favorable to the Commonwealth, that sufficiently
establishes both the commission of a crime and that the
accused is probably the perpetrator of that crime.
The Commonwealth establishes a prima facie case
when it produces evidence that, if accepted as true,
would warrant the trial judge to allow the case to go to
a jury. The Commonwealth need not prove the elements
of the crime beyond a reasonable doubt; rather, the
prima facie standard requires evidence of the existence
of each and every element of the crime charged.
Moreover, the weight and credibility of the evidence are
not factors at this stage, and the Commonwealth need
only demonstrate sufficient probable cause to believe
that the person charged has committed the offense.
Commonwealth v. Ouch, 199 A.3d 918, 923 (Pa. Super. 2018)
[ ].
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Commonwealth v. Perez, 220 A.3d 1069, 1075 (Pa.Super. 2019) (en banc)
(emphasis and footnote omitted), appeal granted on other grounds, March 2,
2020.
Furthermore, “[t]o demonstrate that a prima facie case exists, the
Commonwealth must produce evidence of every material element of the
charged offense(s) as well as the defendant’s complicity therein.”
Commonwealth v. Dantzler, 135 A.3d 1109, 1112 (Pa.Super. 2016)
(citation omitted). The Commonwealth may sustain its burden of proving
every element of the crime(s) by means of wholly circumstantial evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011). However,
“we have also noted that suspicion and conjecture are not evidence and are
unacceptable as such.” Commonwealth v. Holston, 211 A.3d 1264, 1269
(Pa.Super. 2019) (en banc) (citation omitted). “Where the Commonwealth’s
case relies solely upon a tenuous inference to establish a material element
of the charge, it has failed to meet its burden of showing that the crime
charged was committed.” Id. (citation omitted, emphasis in original). “To
meet its burden, the Commonwealth may utilize the evidence presented at
the preliminary hearing and also may submit additional proof.” Dantzler, 135
A.3d at 1112 (citation omitted).
To establish possession and possession of drug paraphernalia the
Crimes Code requires, respectively:
Knowing or intentionally possessing a controlled …
substance by a person not registered under this Act, or a
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practitioner not registered or licensed by the appropriate State
board, unless the substance was obtained directly from, or
pursuant to, a valid prescription order or order of a practitioner,
or except as otherwise authorized by this Act.
35 P.S.§ 780-113(a)(16).
The use of, or possession with intent to use, drug
paraphernalia for the purpose of planting, propagating,
cultivating, growing, harvesting, manufacturing, compounding,
converting, producing, processing, preparing, testing, analyzing,
packing, repacking, storing, containing, concealing, injecting,
ingesting, inhaling, or otherwise introducing into the human body
a controlled substance in violation of this Act.
35 P.S. § 780-113(a)(32).
In addition, Possession with Intent to Deliver (PWID) is defined as
follows:
Except as authorized by this act, the manufacture, delivery, or
possession with intent to manufacture or deliver, a controlled
substance by a person not registered under this act, or a
practitioner not registered or licenses by the appropriate State
board, or knowingly creating, delivering or possessing with intent
to deliver, a counterfeit controlled substance.
35 P.S. § 780-113(a)(30). This Court has explained the evidence necessary
to sustain a PWID conviction under 35 P.S. § 780-113(a)(30) as follows:
The Commonwealth establishes the offense of [PWID] when
it proves beyond a reasonable doubt that the defendant possessed
a controlled substance with the intent to deliver it.
To determine whether the Commonwealth presented
sufficient evidence to sustain [a defendant’s] conviction for
[PWID], all of the facts and circumstances surrounding the
possession are relevant and the elements of the crime may be
established by circumstantial evidence. Furthermore, possession
with intent to deliver can be inferred from the quantity of the
drugs possessed along with the other surrounding circumstances.
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Commonwealth v. Little, 879 A.2d 293, 297 (Pa.Super. 2005) (internal
citations omitted). Moreover,
[w]ith regard to the intent to deliver, we must examine the facts
and circumstances surrounding the possession. The intent to
deliver may be inferred from possession of a large quantity of
controlled substances. It follows that possession of a small
amount of a controlled substance supports the conclusion that
there is an absence of intent to deliver. If the quantity of the
controlled substance is not dispositive as to the intent, the court
may look to other factors.
Other factors to consider when determining whether a
defendant intended to deliver a controlled substance include the
manner in which the controlled substance was packaged, the
behavior of the defendant, the presence of drug paraphernalia,
and the sums of cash found in possession of the defendant. The
final factor to be considered is expert testimony. Expert opinion
testimony is admissible concerning whether the facts surrounding
the possession of controlled substances are consistent with an
intent to deliver rather than with an intent to possess it for
personal use.
Commonwealth v. Roberts, 133 A.3d 759, 768 (Pa.Super. 2016) (internal
citation omitted), appeal denied, 636 Pa. 675, 145 A.3d 725 (Pa. 2016).
Possession may be proved “by showing actual possession, constructive
possession, or joint constructive possession.” Commonwealth v. Hall, 199
A.3d 954, 960 (Pa.Super. 2018), appeal denied, 206 A.3d 1028 (Pa. 2019).
Constructive possession is the ability to exercise a conscious
dominion over the contraband. It usually comes into play when
police find contraband somewhere other than on the defendant's
person. Constructive possession requires proof that the defendant
had knowledge of the existence and location of the item. The
Commonwealth may prove such knowledge circumstantially. That
is, it may prove that the defendant had knowledge of the existence
and location of the items at issue from examination of the totality
of the circumstances surrounding the case, such as whether the
contraband was located in an area usually accessible only to the
defendant.
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For the Commonwealth to prove constructive possession
where more than one person has access to the contraband, the
Commonwealth must introduce evidence demonstrating either the
defendant’s participation in the drug-related activity or evidence
connecting the defendant to the specific room or areas where the
drugs were kept.
Id. at 961 (cleaned up).
Finally:
A person is guilty of conspiracy with another person to
commit a crime if with the intent of promoting or facilitating its
commission he (1) agrees with such other person or persons that
they or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to commit such
crime; or (2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903(a).
In its brief Opinion filed on October 9, 2019, the trial court provides
scant reasoning in support of its decision pertaining to the charges the
Commonwealth challenges herein. Instead, the court focuses primarily upon
the firearms charges. It does find that evidence Appellee actually made or
even was aware of an agreement to deliver controlled substances was lacking
because “[m]ere presence at the scene of a crime or knowledge of it is
insufficient absent [Appellee] knowingly entering an agreement to
participate.” Trial Court Opinion, filed 10/9/19, at 3. In granting Appellee’s
petition for habeas corpus as to intentional possession of a controlled
substance, the court states that the search warrant was for an apartment of
which Appellee is not a lessee and “[n]othing was found on [Appellee].” Id.
at 5.
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Contrary to the trial court’s holding, the Commonwealth is permitted to
establish Appellee’s constructive possession via circumstantial evidence and
the reasonable inferences that arise therefrom. Commonwealth v. Parrish,
191 A.3d 31, 36 (Pa.Super. 2018), appeal denied, 202 A.3d 42 (Pa. 2019).
Viewing the evidence presented at both hearings in a light most favorable to
the Commonwealth, we disagree with the trial court and find that, at a
minimum, the Commonwealth presented a prima facie case to establish
constructive possession as to possession with intent to deliver, possession,
and possession of drug paraphernalia.
In the days prior to and on the day of the execution of the search
warrant at 4600, 4th Avenue, Apartment 4, Appellee was identified and
photographed entering and exiting the apartment building. This behavior
indicates a familiarity with Apartment and suggests that Appellee’s presence
there on February 1, 2019, was not just happenstance.
During the execution of the warrant, Appellee was in the dining room
with Cook and Williams, and a scale topped with suspected cocaine was found
on the dining room table. In a nearby toilet, a bag containing two to three
ounces of cocaine was recovered. A search of the kitchen revealed a Pyrex
cup, a stainless steel knife stained with white residue and baking soda;
Trooper Fachet indicated such items were used to make crack cocaine.
Significantly, a search of Appellee recovered $1,700.00, while Williams was
found to possess over $1,800.00.
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In light of this, it cannot be said definitively that Appellee was merely
present in the apartment with others and, therefore, lacked the requisite
control of these items. To the contrary, it may be inferred form Appellee’s
close proximity to the contraband and previously-observed behavior in and
around the apartment building that he constructively and jointly possessed
the same. This, coupled with the fact that he possessed a large sum of money,
is prima facie evidence he was aware of and a participant in the manufacturing
of narcotics in the apartment. See Parrish, supra.
The same holds true with regard to the possession with intent to deliver
charge. As stated previously, a court may consider such factors as the way
in which drugs are packaged, a defendant’s behavior, the presence of drug
paraphernalia, the sum of cash found in his possession, and expert testimony
when determining whether he had an intent to deliver drugs, rather than
possess them for personal use. See Roberts, supra. Trooper Fachet
commented upon the significant quantity of cocaine found in the toilet bowl,
the way in which it was packaged, and the paraphernalia located in the kitchen
as evincing an intent to sell the drugs. Each of these items was in close
proximity to Appellee in the apartment. Also, the large sum of cash found on
Appellee’s person and his activity around the apartment led Trooper Fachet to
comment that: “individuals will allow dealers or drug traffickers to utilize their
apartment for many reasons, for payment or also through controlled
substances, various reasons . . . .” N.T., 10/1/19, at 38. In light of all the
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foregoing, we find the trial court erred in dismissing the possession,
possession of drug paraphernalia, and PWID charges.
Finally, we further disagree with the trial court’s finding that the record
lacks prima facie evidence of a shared criminal intent among Appellee and his
codefendants to establish conspiracy to commit PWID. A criminal conspiracy
is proven upon the establishment of an agreement, shared criminal intent,
and an overt act in furtherance of the agreement. See Commonwealth v.
Johnson, 180 A.3d 474, 479 (Pa.Super. 2018) (citing, inter alia, 18 Pa.C.S.
§ 903). As this Court has explained,
[a]n explicit or formal agreement to commit crimes can seldom, if
ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the circumstances
that attend its activities. Thus, a conspiracy may be inferred where
it is demonstrated that the relation, conduct, or circumstances of
the parties, and the overt acts of the co-conspirators sufficiently
prove the formation of a criminal confederation. The conduct of
the parties and the circumstances surrounding their conduct may
create a web of evidence linking the accused to the alleged
conspiracy beyond a reasonable doubt. Even if the conspirator did
not act as a principal in committing the underlying crime, he is
still criminally liable for the actions of his co-conspirators taken in
furtherance of the conspiracy.
Id. (cleaned up).
From the previously discussed web of evidence, viewed in the light most
favorable to the Commonwealth, we find the Commonwealth established a
prima facie case that the interactions among Appellee, Cook and Williams
evince a shared criminal intent to package and sell cocaine over which the
three men exercised conscious dominion and control.
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Prior to the execution of the search warrant, police observed Appellee
entering and exiting numerous areas of the apartment building as well as
Cook’s residence. When officers entered Apartment 4, Appellee, Cook and
Williams were found in the same room and in close proximity to the drugs and
other contraband. Appellee and Williams each had a large sum of cash on his
person, and Trooper Fachet explained that in his training and experience he
had learned that an individual often allows a drug dealer to utilize his or her
apartment to further the illegal enterprise. This circumstantial evidence
establishes, at a minimum, that the Commonwealth put forth a prima facie
case of conspiracy to commit possession with intent to deliver. See
Commonwealth v. Jones, 874 A.2d 108, 122 (Pa.Super. 2005) (ruling
circumstantial evidence of relationship with other occupant of a vehicle and
joint access to contraband was sufficient to sustain conspiracy conviction).
Accordingly, we reverse the Order granting Appellee habeas corpus
relief and remand for trial.
Order Reversed. Case Remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/3/2020
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